RACIAL ANTAGONISM, SEXUAL BETRAYAL, GRAFT, AND MORE: RETHINKING AND REMEDYING THE UNIVERSE OF DEFENSE COUNSEL FAILINGS.

• Author: Johnson, Sheri Lynn

Table of Contents I. The Legal Framework Governing Counsel Failures A. The Right to Appointed Counsel B. Counsel Failure 1. Truant Lawyers a. Cronic v. United States b. Bell v. Cone 2. Torn Lawyers a. Holloway v. Arkansas b. Cuyler v. Sullivan c. Mickens v. Taylor i. "Adversely affecting the lawyer's performance" ii. Conflicts of Interest 3. Terrible Lawyers II. Lower Court Applications of Cronic and Cuyler A. Lapses and Frailties of the Defense Bar 1. Truant? a. Lack of Licensure b. Lack of Opportunity c. Inaction and Absence d. Impairments: Sleeping, Drug Addiction, and Mental Illness e. Antagonism Toward the Client 2. Torn? a. Other Clients b. Professional or Financial Stake c. Romantic or Sexual Entanglements d. Criminal Charges e. Animosity III. The Cronic Touchstone: The Exercise of Lawyerly Judgment A. Defining Truancy B. Applying the "Exercise of Lawyerly Judgment" Standard 1. Sleeping, Drunk, Drugged, and Mentally III Lawyers 2. Racially Antagonistic Lawyers 3. Lawyers Who Fail to Advocate for a Client IV. The Cuyler Touchstone: Loyal Advocacy A. Defining Torn Allegiance B. Applying the "Loyal Advocacy" Standard 1. Sequential Representation and Representation of Parties Other than Codefendants 2. Financial and Professional Stake 3. Criminal Charges 4. Romantic and Sexual Entanglements 5. Antagonism or Ambivalence--Actual and Presumed Conclusion INTRODUCTION

Is a defendant entitled to a new trial when his counsel has repeatedly spouted ugly racial stereotypes and used racial epithets in referring to his clients? Or should a reviewing court require the defendant to show how he was "prejudiced" by that lawyer's racial antagonism? In June of 2018, Ellis v. Harrison held that unless defense counsel had expressed his racist views to the defendant himself, no conflict will be presumed. (1) The defendant must show both deficient performance and prejudice to establish a Sixth Amendment violation. In January of 2019, the Ninth Circuit granted rehearing en banc.

At first, this may look like just another case where a liberal circuit grants en banc review of a conservative panel's decision. But the Ellis panel was not conservative: all three judges were Democratic appointees. And accompanying the per curiam opinion was a remarkable concurrence--signed by all three judges--that began by virtually begging for an en banc review and reversal:

If we were writing on a blank slate, I would vote to grant relief. Of the constitutional rights given to a criminal defendant, none is more important than the Sixth Amendment right to counsel. By allowing Ellis's conviction to stand, we make a mockery of that right. (2) Moreover, in the course of her concurrence. Judge Nguyen described and deplored the comments made by defense counsel, distinguished counsel's attitudes from run-of-the-mill racism, referred to the race of the panel members and advocates in the case, and observed that the increasing diversity in the legal profession had failed to eradicate racial bias. She ended by stating that circuit precedent tied her hands, requiring denial of relief. (3)

Will en banc review provide a simple answer? No. The oral argument makes clear that the Ninth Circuit, though sympathetic to the merits of the claim, is troubled by a host of procedural issues. (4) But even were those obstacles to be overcome, grant of certiorari following a liberal criminal procedure decision, particularly from the Ninth Circuit, would not be unexpected. And then, even if the Supreme Court were willing to view the case more generously than most criminal procedure claims because it involves race--which four recent cases (5) suggest it might--a swamp of lawyer misconduct beyond racial antagonism lies ahead. Any decision by the Ninth Circuit or the Supreme Court will likely implicate misconduct in forms other than racial antagonism.

What should happen if a lawyer sleeps during parts of the trial--or is sleeping with the prosecutor? If defense counsel was mentally ill or intoxicated during the trial, should a court measure her performance by the deferential standards that apply to most ineffective assistance of counsel claims? Or should that court, after ascertaining those facts, simply grant the defendant a new trial? What about defendants represented by lawyers who aim to profit by securing media rights to their client's case? Or defendants represented by lawyers seeking employment with the district attorney's office?

No one doubts that lawyers should refrain from the use of racial slurs, from sleeping during trial, from "sleeping with the enemy," from representing clients while mentally ill, from intoxication in the courtroom, or from securing illicit gains through the travails of their clients. Such prohibitions are generally imposed by rules of professional ethics, but those rules do not address the consequences for the criminal defendant whose lawyer ignored them. Cases raising these and similar questions are rife in the lower courts.

To date, the Supreme Court has not considered the appropriate remedies for any of these transgressions. Its precedents do, however, establish three categories of counsel failure, each with a different standard for judging I whether the failure harmed the defendant enough to demand a new trial: the truant, the torn, and the terrible. Under claims governed by United States v. Cronic, a defendant who proves that his lawyer was "truant," that is, absent or constructively absent, need show no more. (6) This is the most defendant-friendly, but least common, category. A slightly larger category, defendants with "torn" lawyers, must, pursuant to Cuyler v. Sullivan, show the existence of a conflict of interest, and show that the existing conflict "adversely affected" the lawyer's performance. (7) But by far the largest category of counsel failure claims, those involving present, presumptively loyal, but just plain terrible lawyers, are governed by the harsh standard of Strickland v. Washington, which requires proof that trial counsel was incompetent, and proof of "prejudice"--a "reasonable likelihood" that competent representation would have resulted in a different verdict. (8)

Years after the verdict, the difficulty in assessing that likelihood combined with the judicial drive toward finality means that many lower courts refuse to find prejudice under Strickland even in the face of grave malfeasance by counsel. Consequently, determining into which category a particular form of counsel failure falls--and therefore whether any proof of prejudice is required--is often outcome-determinative. Nonetheless, the Supreme Court has provided only a few examples of these categories, eschewing both catalogues and theories. Not surprisingly, lower courts have responded in ways that seem arbitrary.

Calvin Burdine's case provides a striking example of arbitrary determination of a Cronic claim of constructive absence. The Texas Court of Criminal Appeals (9) and a panel of the Fifth Circuit Court of Appeals (10) were excoriated for Riling that even when a capital defendant's lawyer slept through significant portions of his trial, a new trial was not automatic, but required the defendant to shoulder the burden of proving that he was prejudiced by those naps. Public response to this ruling was very critical; put in layperson's terms, it was astonishing to learn that, if charged with a crime, a person would be entitled to a lawyer, but not necessarily one who was awake. The Fifth Circuit Court of Appeals sitting en banc was therefore applauded for concluding that a sleeping lawyer was tantamount to no lawyer at all, and mandated reversal. (11) What did not reach the public or the press, however, was the Fifth Circuit's insistence that drunk lawyers and mentally ill lawyers were horses of a different color, and consequently, that the demonstration of a lawyer's intoxication or paranoia would not suffice for reversal. (12) A layperson might have thought the right to a lawyer implied a sane and sober lawyer, as well as one able to stay awake.

The Supreme Court's response to Burdine only deepens the apparent arbitrariness of the constructive absence category. The Court held the petition for certiorari in Burdine pending its determination of Bell v. Cone, (13) another case in which the lower court had determined that the Cronic constructive absence standard applied. The Supreme Court reversed the lower court in Cone, explaining that defense counsel's failure to oppose the prosecution at specific points--rather than throughout the sentencing proceeding--made the case one governed by Strickland (where prejudice must be proved), and not by Cronic (where prejudice would be presumed). (14) This would seem to imply that falling asleep only during portions of a trial should be governed by Strickland and not by Cronic--which would mean that the Fifth Circuit's decision in Burdine was wrong. Nonetheless, the Supreme Court denied certiorari in Burdine.

Another case from the Fifth Circuit, that of Betty Lou Beets, (15) makes clear that the application of the category of conflicted lawyers is as arbitrary as the application of the constructively absent lawyers category. Beets was charged with the murder of her husband for pecuniary gain, and part of the State's proof of motive was evidence that she sought to obtain insurance benefits for her husband's death. (16) Her lawyer, however, could have testified that he himself had informed Beets of such benefits after her husband's disappearance, and her subsequent interest or inquiry into benefits was attributable to this post-crime information. (17) But a lawyer cannot be both an advocate and a witness, and Beets's lawyer did not withdraw. Why not? Probably because he had a formal contract with Beets that exchanged his legal services for the media rights to her story, rights that would vest when she was executed. (18) The district court found that this contract created a conflict and granted relief. (19)

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